Slavery and the Militia

“Like slaves in pre-constitutional times, common Americans under Heller must obtain the permission of their masters, the judges, to possess such firearms as the judges condescend to allow, and that only after years of expensive litigation. Like free people of color in that era, with the permission of judges common Americans under Heller may possess firearms perhaps suitable for personal defense in their homes—but certainly not suitable for most Militia service.”

Slavery and the Militia

Slaves throughout the American Colonies were almost always disbarred from the possession of firearms, except under close supervision, no doubt on the basis of Blackstone’s admonition that “[t]wo precautions are * * * to be observed in all prudent and free governments:

1.) To prevent the introduction of slavery at all: or,

2.) If it be already introduced, not to intrust those slaves with arms; who will then find themselves an overmatch for the freemen”.(footnote 1)

This was a principle (or a prejudice) that died hard: For example, notwithstanding that one member of the Militia Company who had stood to arms on Lexington Green and been wounded was the slave Prince Estabrook, (footnote 2) even under the critical circumstances of the siege of Boston in 1775 the Massachusetts Committee of Safety refused to enlist slaves generally in that Colony’s forces. (footnote 3)

Slavery was by no means uncommon in pre-constitutional New England. (footnote 1) The institution was first “legitimized” by statute in Massachusetts in 1641:

“There shall never be any bond slaverie, villinage or Captivitie amongst us unles it be lawfull Captives taken in just warres, and such strangers as willingly selle themselves or are sold to us. And these shall have all the liberties and Christian usages which the law of god established in Israell concerning such persons doeth morally require. This exempts none from servitude who shall be Judged thereto by Authoritie.” (footnote 2)

2.) THE BODY OF LIBERTIES, No. 92, in THE COLONIAL LAWS OF MASSACHUSETTS, REPRINTED FROM THE EDITION OF 1660, WITH THE SUPPLEMENTS TO 1672. CONTAINING ALSO, THE BODY OF LIBERTIES OF 1641 (Boston, Massachusetts: Rockwell & Churchill, 1889), at 53. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 118.

Had the slaves regularly observed free people of color moving about with arms in their hands, they might have begun to question their servile status, and to harbor dangerous ideas about “equality” and “rights” that arms in their own hands could have secured for them. So, in Virginia throughout the pre-constitutional period, disarmament of these people was the norm:

• [1639] “ALL persons except negroes to be provided with arms and amunition or be fined[.]” (footnote 1)

• [1680] “[I]t shall not be lawfull for any negroe or other slave to carry or arme himselfe with any club, staffe, gunn, sword or any other weapon of defence or offence[.]” (footnote 2)

• [1705] “That no slave go armed with gun, sword, club, staff, or other weapon * * * : And if any slave shall be found offending herein, it shall be lawful for any person or persons to apprehend and deliver such slave to the next constable or head-borough, who is hereby * * * required, without further order or warrant, to give such slave twenty lashes on his or her bare back, well laid on, and so send him or her home[.]” (footnote 3)

• [1723] “[N]o negro, mulatto, or Indian whatsoever; (except as is hereafter excepted,) shall * * * presume to keep, or carry any gun, powder, shot, or any club, or other weapon whatsoever, offensive or defensive; but that every gun, and all powder and shot, and every such club or weapon * * * found or taken in the hands, custody, or possession of any such negro, mulatto, or Indian, shall be taken away; and * * * be forfeited to the seisor and informer, and moreover, every such negro, mulatto, or Indian, in whose hands, custody, or possession, the same shall be found, shall * * * receive any number of lashes, not exceeding thirty- nine, well laid on, on his or her bare back, for every such offence.

“ * * * Provided nevertheless, That every free negro, mullatto, or indian, being a house-keeper, or listed in the militia, may be permitted to keep one gun, powder, and shot; and that those who are not house- keepers, nor listed in the militia * * * , who are now possessed of any gun, powder, shot, or any weapon, offensive or defensive, may sell and dispose thereof, at any time before the last day of October next ensuing. And that all negros, mullattos, or indians, bond or free, living at any frontier plantation, be permitted to keep and use guns, powder, and shot, or other weapons, offensive or defensive; having first obtained a license for the same, from some justice of the peace of the county wherein such plantations lie * * * upon the application of such free negros, mullattos, or indians, or of the owner or owners of such as are slaves[.]” (footnote 4)

• [1748] “[N]o negroe, mulattoe, or Indian whatsoever, shall keep, or carry any gun, powder, shot, club, or other weapon, whatsoever, offensive, or defensive, but all and every gun, weapon, and ammunition, found in the custody or possession of any negroe, mulattoe, or Indian, may be seized by any person, and * * * be forfeited to the seizor, for his own use; and moreover, every such offender shall * * * receive * * * any number of lashes, not exceeding thirty nine, on his, or her bare back, well laid on, for every such offence.

“ * * * Provided nevertheless, That every free negroe, mulattoe, or Indian, being a house keeper, may be permitted to keep one gun, powder, and shot: And all negroes, mullattoes, or Indians, bond or free, living at any frontier plantation, may be permitted to keep and use guns, powder, shot, and weapons, offensive, or defensive, by license, from a justice of peace, of the county wherein such plantations lie, to be obtained upon the application of free negroes, mulattoes, or Indians, or of the owners of such as are slaves[.]” (footnote 5)

• [1785] “No slave shall keep any arms whatever, nor pass unless with written orders from his master or employer, or in his company with arms, from one place to another. Arms in possession of a slave contrary to this prohibition, shall be forfeited to him who will seize them.” (footnote 6)

2.) EN-2049 — ACT X, An act for preventing Negroes Insurrections, AT A GENERALL ASSEMBLIE, BEGUNNE AT JAMES CITTIE THE EIGHTH DAY OF JUNE, 1680, in Laws of Virginia, Volume 2, at 481. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1365.

3.) EN-2050 — CHAP. XLIX, An act concerning Servants and Slaves, § XXXV, AT A GENERAL ASSEMBLY, BEGUN AT THE CAPITOL, IN THE CITY OF WILLIAMSBURG, THE TWENTY-THIRD DAY OF OCTOBER, 1705, in Laws of Virginia, Volume 3, at 459. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1365.

4.) EN-2051 — CHAP. IV, An act directing the trial of Slaves, committing capital crimes; and for the more effectual punishing conspiracies and insurrections of them; and for the better government of Negros, Mulattos, and Indians, bond or free, §§ XIV and XV, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT Williamsburg, the fifth day of December, 1722, and by writ of prorogation, begun and holden on the ninth day of May, 1723, in Laws of Virginia, Volume 4, at 131. Also seeThe Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1365.

5.) EN-2052 — CHAP. XXXVIII, An Act directing the trial of Slaves committing capital crimes; and for the more effectual punishing conspiracies and insurrections of them; and for the better government of negroes, mulattoes, and Indians, bond or free, §§ XVIII and XIX, AT A GENERAL ASSEMBLY, BEGUN AND HELD AT The College in Williamsburg, the twenty-seventh day of October, 1748, in Laws of Virginia, Volume 6, at 109-110. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1365-66.

6.) EN-2053 — CHAP. LXXVII, An act concerning slaves, § IV, AT A GENERAL ASSEMBLY BEGUN AND HELD At the Public Buildings in the City of Richmond, on Monday the seventeenth day of October[,] one thousand seven hundred and eighty-five, in Laws of Virginia, Volume 12, at 182. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1366.

Later, as a matter of English law, Blackstone utterly repudiated all but the last sentence of the theory on which the Massachusetts enactment of 1641 enactment rested:

[P]ure and proper slavery does not, nay cannot, subsist in England * * * whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. And indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist any where. The * * * origins of the right of slavery * * * are all of them built upon false foundations. As, first, slavery is held to arise * * * from a state of captivity in war * * * . The conqueror * * * had a right to the life of his captive; and having spared that, has a right to deal with him as he pleases. But it is an untrue position, when taken generally, that, by the law of nature or nations, a man may kill his enemy: he has only a right to kill him, in particular cases; in cases of absolute necessity, for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. War is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners, but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over. Since therefore the right of making slaves by captivity, depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail likewise. But, secondly, it is said that slavery may begin * * * when one man sells himself to another. This, if only meant of contracts to serve or work for another, is very just; but when applied to strict slavery * * * is also impossible. Every sale implies a price, * * * an equivalent * * * : but what equivalent can be given for life, and liberty, both of which (in absolute slavery) are held to be in the master’s disposal? His property also, the very price he seems to receive, devolves ipso facto to his master, the instant he becomes his slave. In this case therefore the buyer gives nothing, and the seller receives nothing: of what validity then can a sale be, which destroys the very principles upon which all sales are founded? Lastly, we are told, that besides these two ways * * * slaves * * * may also be hereditary: * * * the children of acquired slaves are * * * slaves also. But this being built on the two former rights, must fall together with them. If neither captivity, nor the sale of one’s self, can by the law of nature and reason reduce the parent to slavery, much less can they reduce the offspring. (footnote 1)

Rather depressingly for the Supreme Court in “the land of the free”, the majority opinion in Heller could have been written by the draftsmen who composed these oppressive statutes. Like slaves in pre-constitutional times, common Americans under Heller must obtain the permission of their masters, the judges, to possess such firearms as the judges condescend to allow, and that only after years of expensive litigation. Like free people of color in that era, with the permission of judges common Americans under Heller may possess firearms perhaps suitable for personal defense in their homes—but certainly not suitable for most Militia service. Actually, free persons of color in Virginia during the pre-constitutional period were better off than common Americans today under Heller, because the statutes did not limit them to any particular kind of firearm—so they might have possessed muskets or even rifles as good as or even better than the standard “military” types of their day. Fundamentally, then, this is the majestic “individual right” “to keep and bear Arms” protected by Heller: the narrow “right” niggardly allowed during pre-constitutional times to distrusted if not despised Catholics, to some slaves, and to free people of color who had “no rights or privileges but such as those who held the power and the Government might choose to grant them”. And Heller grudgingly extended this “right” to Americans by only a gossamer five-to-four majority of the Justices—with the dissenters keen on reducing it effectively to nonexistence. (footnote 1)

2.) See Thomas Fleming, The First Stroke: Lexington, Concord, and the beginning of the American Revolution, (Washington, D.C.: National Park Service, United States Department of the Interior, 1978), at 5. The insert entitled “NAMES OF THE SEVENTY-SEVEN MEN OF CAPTAIN JOHN PARKER’S COMPANY Who were in the early morning engagement on Lexington Common, April 19, 1775” lists Estabrook simply as “COLORED”. Frank W. Coburn, The Battle of April 19, 1775 in Lexington, Concord, Lincoln Arlington, Cambridge Somerville and Charlestown Massachusetts (Lexington, Massachusetts: Lexington Historical Society, Second Edition Revised, 1922), between pages 60 and 61.